The Obama Administration Is Right to Reject the “Settlements=Israel” Conflation

by Lara Friedman

Attention is finally focusing on a bill pending in Congress that would make it U.S. policy to defend and support Israeli settlements. Known as the Customs Bill, this legislation regulates U.S. trade relations with foreign countries and includes the pro-settlement language in a provision that, ostensibly, is about defending the state of Israel against boycotts. It is part of a broader campaign, waged in Washington and in state capitals across the country, that seeks to undermine growing grassroots support for the boycotts, divestment, and sanctions (BDS) against Israel and reverse Washington’s longstanding opposition to settlements in the occupied territories.

Back in July, Congress passed a similar provision as part of the Trade Promotion Authority (TPA) bill. The State Department responded with a statement rejecting the pro-settlements language, noting that “[e]very U.S. administration since 1967—Democrat and Republican alike—has opposed Israeli settlement activity beyond the 1967 lines.” The administration’s rejection provoked a harsh critique by one Washington Post blogger who writes on both legal issues and the Israeli-Palestinian conflict.

The blogger, Eugene Kontorovich, testified on the BDS movement and ways to combat it before the Subcommittee on National Security of the House Committee on Oversight and Government Reform last July. Now, with the Customs Bill in the spotlight and likely to soon come before President Obama, the arguments presented in his critique—which apply equally to the settlements-related provision in the Customs Bill—bear close scrutiny.

Conflation or Not?

A first argument offered by Kontorovich, who teaches law at Northwestern, is that the Obama administration’s opposition to the provision reflects its fundamental failure to understand what the law actually says. He argues that the State Department:

does not even read the statute accurately. It criticizes the law of [sic] ‘conflating’ Israel and the territories. In fact, the opposite is true. The law separately refers to ‘the State of Israel’ and ‘territories under its jurisdiction,’ which distinguishes between them.

This criticism is accurate insofar as it describes individual clauses in the relevant paragraph of the statute, taken in isolation. It is inaccurate insofar as it purports to describe the meaning of those clauses in the context of the words surrounding them. What the actual text of the TPA bill says (and the language in the Customs bill is virtually identical) is this:

…the term ‘actions to boycott, divest from, or sanction Israel’ means actions by states, non-member states of the United Nations, international organizations, or affiliated agencies of international organizations that are politically motivated and are intended to penalize or otherwise limit commercial relations specifically with Israel or persons doing business in Israel or in Israeli-controlled territories.  [emphasis added]

The complete sentence makes clear that Congress, in both bills, has passed language explicitly defining actions “against Israel” to mean not only against the sovereign state of Israel, but also actions against “Israeli-controlled territories.” This is the very definition of conflating.

Within Congressional Authority or Not?

Coming at it from another angle, the writer attacks the State Department for suggesting “that Congress cannot legislate a particular trade regime toward particular territories, even when it makes no suggestion about their sovereign status.” He continues:

That proposition has no legal basis. Zivotofsky itself suggests otherwise. Indeed, the Solicitor General conceded in oral argument that Congress could legitimately pass trade laws against the foreign policy of the Executive, indeed, even if it would seriously interfere with his foreign diplomatic efforts.

The case to which he is referring is the landmark Zivotofsky case, in which the Supreme Court ruled as unconstitutional the congressional effort to use the law governing the issuance of passports to compel the president to reverse foreign policy dating back to 1948 regarding the status of Jerusalem. In response to a question from Justice Scalia about the case, what the solicitor general said is this:

There are certain things that are within Congress’s power that would antagonize foreign countries that wouldn’t raise a separation of powers problem, of course, like a trade embargo or a travel ban.

The solicitor general’s words indeed indicate that Congress has the power to legislate some specific aspects of U.S. relations with foreign countries—as it has done for years, for example, with respect to sanctions on Iran. Nothing he said, however, suggests that what Congress is trying to legislate today with respect to treatment of Israel settlements, located in territory over which the U.S. does not recognize Israeli sovereignty, is within congressional power. In fact, efforts by Congress to use trade legislation to grant legitimacy to Israeli settlements in the West Bank are clearly analogous to the Zivotofsky case. In both cases, Congress is trying to legislate de facto U.S. recognition of Israeli sovereignty—in the first instance in Jerusalem (both East and West) and now in the West Bank. And in the Zivotofsky case, the Supreme Court confirmed, with greater clarity than at any time in U.S. history, that the authority to grant such recognition rests exclusively with the president.

Consistent U.S. Policy or Not?

Shifting to a different approach, the author goes after the State Department for stating that every U.S. administration since 1967 has opposed Israeli settlement activity. He contends that the State Department’s comments:

…badly mischaracterize U.S. policy on the matter. The United States has not consistently opposed settlements. Presidents Ronald Reagan and George W. Bush both expressed varying degrees of support for them.

In fact, every U.S. president since 1967 has expressed opposition to settlements, including these two presidents. True, each did so in varying terms, according to varying circumstances, but U.S. policy regarding settlements has, across time, remained remarkably consistent.

Indeed, although some like to suggest that President Obama is tougher on settlements than his predecessors—for example, for calling for a full settlement freeze at the beginning of his first administration—it was under George W. Bush, not Obama, that U.S.-led efforts brought about the Roadmap, which required Israel to freeze all settlement activity (including natural growth).

Likewise, those who would suggest that Reagan was more sympathetic to Israel’s activities in the West Bank would do well to consult the historical record of U.S. actions in the United Nations Security Council during that period. Under Reagan, the U.S. twice abstained (USNCRs 592 and 605) and once voted in favor (UNSCR 607) of resolutions reiterating that “the Geneva Convention relative to the protection of civilian persons in time of war, of 12 August 1949, is applicable to Palestinian and other Arab territories, occupied by Israel since 1967, including Jerusalem.” This convention states, among other things, that “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.”

A Settlement Policy Issue or Not?

Shifting tactics again, the writer asserts that the question of economic activity in settlements is actually divorced from policy regarding the legitimacy of Israeli occupation. He argues:

On this, U.S. policy is longstanding and clear. U.S. laws have long applied the same economic treatment to all areas under Israeli jurisdiction (including Jerusalem). For example, the pair of Anti-Boycott laws passed in the late 1970s treat Israeli companies the same regardless of their location in relation to the Green Line. And the U.S.-Israel Free Trade Implementation Act, first passed in 1985, affords areas under Israeli jurisdiction the same treatment as all ‘Israeli’ products for U.S. trade purposes.

In fact, Congress drafted, debated, and passed the anti-boycott laws referenced above in the late 1970s, when the nascent settlement enterprise involved little if any economic activity. To suggest that Congress deliberately elected not to distinguish between Israel and the settlements in order to provide protection for settlement economic activity that at the time didn’t exist—and, indeed, only developed decades later—makes no sense. In the late 1970s, when these laws were adopted, the question of settlements would never have come up.

Moreover, there is recent, concrete evidence demonstrating that Congress has never intended for protection of settlements to be an element of U.S. anti-boycott legislation. This evidence comes in the form of a provision adopted every year as part of the Foreign Operations Appropriations bill entitled “Arab League Boycott of Israel.” This provision articulates congressional opposition to this boycott and calls on the White House to act to oppose it. Nowhere does it include any reference to “Israel-controlled territories” or any other wording that would imply that this opposition extended to areas outside of sovereign Israel.

What about the U.S.-Israel Free Trade Implementation Act? This free trade agreement (FTA) was finalized in 1985. As with the anti-boycott legislation, this was a time when few if any Israeli products were coming out of the occupied territories for export. Thus, the question of the treatment of settlement products would not have arisen. The fact that the FTA does not explicitly differentiate between Israel and the occupied territories cannot reasonably be construed to mean that U.S. trade negotiators intended to grant preferential trade status to settlement exports that, at the time the FTA was finalized, simply did not exist.

Moreover, there is once again more recent, concrete evidence that sheds light on congressional intent. In 1996, Congress amended the FTA to explicitly extend certain elements of the agreement to the West Bank and Gaza Strip. By adopting this amendment, Congress affirmed clearly that the U.S.-Israel FTA, as originally adopted, did not apply to the West Bank and Gaza (neither to settlers nor Palestinians). And to be clear: although the amendment extends some FTA benefits to the geographic areas of the West Bank and Gaza, not distinguishing between settlers and Palestinians, it cannot be seriously suggested that in 1996, at the height of the peace process, Congress adopted this amendment in order to legitimize and provide benefits to settlements. Rather, the purpose of this extension of the FTA was to facilitate Palestinian economic growth in the West Bank and Gaza and support the peace process. Statements by members of Congress during floor consideration of the amendment leave no question about their intent.

Constitutional Usurpation but by Whom?

The final point Kontorovich makes in his critique of the Obama administration is this:

If the Executive were considering not enforcing the law, it would be extraordinary constitutional usurpation by the Executive, effectively giving State Department spokesmen line-item veto power over enacted trade laws.

In fact, the State Department’s statement was nothing more than a clarification of U.S. policy. Had he wished to do so, President Obama could have issued a “signing statement” when he signed that bill into law, stating that the pro-settlements language in it was unconstitutional and would not be implemented. He didn’t elect to do so, most likely because the language in that bill applied to only one case (a specific set of trade negotiations with Europe), and applied only if the president availed himself of the fast-track authority provided under the bill. In that sense, the pro-settlement provision of that bill could be seen as non-mandatory.

However, the Customs Bill is a different matter. This law represents, truly, an extraordinary constitutional usurpation by Congress. If left unchallenged, it will compel U.S. trade officials to act as if the U.S. de facto recognizes Israeli sovereignty in the West Bank, even though the executive has granted no such recognition. In doing so, it will transform U.S. trade negotiators into defenders and lobbyists for settlements, contrary to consistent U.S. policy dating back almost half a century, to the birth of the settlement project.

Given these realities, the president will likely issue a signing statement declaring the provision unconstitutional. If he does so, this will by no means be an extraordinary act by a US president. Indeed, Obama has a record of issuing relatively few signing statements (around 30 from 2008-2014, affecting some 99 provisions of law). In contrast, during his eight years in office George W. Bush issued 161 signing statements affecting a list of over 1,100 provisions of law.

Ironically, this list includes the signing statement that gave birth to the Zivotofsky case, challenging the right of Congress to use passport regulations to force the U.S. to recognize Israeli sovereignty in Jerusalem. This same case leaves President Obama on the firmest possible ground in rejecting the current congressional effort to use its legislative power to change U.S. policy on settlements.

Photo: Eugene Kontorovich